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The Hayward Charitable Belize Trust Media Release

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The Hayward Charitable Belize Trust Media Release THE HAYWARD CHARITABLE BELIZE TRUST MEDIA RELEASE 8 December 2009 Notice of Arbitration onder the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Belize for the Promotion and Protection of IDvestmenq dated 30 April 1982 The Hayward Charitable Belize Trust (Hayward) wishes to infonn the public that on 4 December 2009 its subsidiary, Dunkeld International Investment Ltd. (Dookeld) commenced arbitration proceedings against the Government of Belize' (the Government). These proceedings were commenced under the Arbitration Rules of the United Nations Commission on International Trade Law and in accordance with an international agreement between the Government of the United Kingdom and the Government for the Promotion and Protection of Investments dated 30 April J982 (the Treaty). Dunkeld alleges that the Government has breached several obligations which the Government owed to Dunkeld under the Treaty. In general terms, Dunkeld alleges that the Government has unlawfully expropriated Dunkeld's investment in Belize Telemedia Limited (Telemedia) and has failed to treat Dunkeld fairly and equitably. In order for the public to be infonned properly, DunkeJd's Notice of Arbitration is attached. Prior to the nationalisation of Telemedia on 25 August 2009, Dunkeld was the beneficial owner of approximately 69% of the shares in Telemedia. Dunkeld is a company established in the Turks and Caicos Islands and is an investor protected by the Treaty as a result of an exchange of notes between the Government of the United Kingdom and the Government extending investment protection to the Turks and Caicos Islands. The exchange of notes was signed on behalf of the Government of Belize in 1985 by the current Prime Minister of Belize, Hon. Dean Barrow, when he was the Minister of Foreign Affairs. On 27 August 2009, Dunkeld fonnally notified the Government of a claim under the Treaty arising out of the nationalisation of Telemedia. Dunkeld informed the Government that it remained willing to seek amicable settlement of the dispute. The Government did not respond to Dunkeld in relation to this proposal. Hayward is disappointed that the Government has not entered into any discussions in order to bring about an amicable settlement of the dispute. Hayward is a charitable trust the beneficiaries of which will substantially be Belizean causes. Bearing this in mind, Hayward remains very flexible in both the amount and timing of the compensation but remains surprised and disappointed that the Government continues to be unwilling to negotiate a settlement that is in the interest of all Belizeans; especially when the Belize economy is worsening and the continued dispute over Telemedia is having such a profound impact on all Belizeans. IN THE MATrER OF AN ARBITRATION UNDER THE ARBITRATION RULES OF THE UNIl'ED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW 1977 AND PURSUANT TO THE 1981 AGREEMENT BETWEEN mE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF BELUZFORTREPROMOTIONANDPRO~ONOF~~ BETWEEN: DUNKELD INTERNATIONAL INVESTMENT LTD. C....... at -v- THE GOVERNMENT OF BELI.ZE R.espoadeat NOTICE OF ARBITRATION 4 December 2009 AIleD " Overy LL. One Bishops Square London El 6AD United Kingdom Tel: +44(0)20 3088 0000 Fax: +44(0)2030880088 Rct': JAEGIMPGlAAMW 1. INTRODUCTION 1.1 This Notice of Arbitration (the Notice) is served by the Claimant, I>u.nkeld International Investment Ltd. (Dunbld or the Claim.. t), on the Respondent, the Government of Belize (the Govel1lDleat or the Respondeat), pursuant to: (a) Article 3 of the Arbitration Rules of the United Nations Commission on International Trade Law 1977 (the UNCITRAL Rales); and (b) Article 8 of the 1982 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Govcmmcnt of Belize for the Promotion and Protection of Investments (the Treaty'). 1.2 Dunkeld demands that the dispute which is set out in this Notice be referred to arbitration in accordance with Article 3 of the UNCITRAL Rules and with Article 8 of the Treaty. 1.3 The dispute to which this Notice relates 00IlCemJ the Govel11lDCl1t's disregard for the vested rights of Dunkeld who is a foreign investor entitled to protection under the Treaty. Dunkeld was the beneficial owner of approximately 69% of the shares in Belize Telemedia Limited, a company incorporated in Belize (felemedia). At all material times, Telemedia baa been the largest owner and operator of telecommunications and other media services in Belize. On 2S August 2009 the Government enacted the Belize Telecommunications (Arnen.drnent) Act 2009 (the Ae1i. which enables it to acquire compulsorily all such property as the Prime Minister, with the approval of the Minister of Finance, considers necessary to take possession of and assume control over telecommunications in Belize. On 2S August 2009 the Minister responsible for teleoommunications made the Belize Telecommunications (Assumption of Control over Belize Telemedia Limited) Order, 2009, Statutory Instrument No. 104 of 2009 (the Order»), By this Otder, approximately 94% of the shaJ:es in Telemedia were acquired for and on behalf of the Government, including those shares which were beneficially owned by Dunkcld. This action was in breach of the Government's obligatiOIll to Dunkeld, which hal the status of an investor under the Treaty. 1. THE TREAT\' 2.1 The Treaty is dated 30 April 1982, approximately se'YCIl months after Belize, formerly British Honduras, gained its independcnc::c fi'om the United Kingdom, and came into force on the same date in accordance with its Article 12. It remains in foree today. 2 2.2 Article 11 of tho Treaty provides: "At the time 0/ signalure 0/ this Agrvement. or at any time thereafter. the provisions 0/ this Agreement may be extended 10 such lemtories for whose international relations the Government of the United Kingdom are responsible as may be agreed between the Contracting Parties in an Exchange ofNotes. " 2.3 The Treaty was extended by Exchange of Notes to the Turks and Caicos Islands on 10 Dec:embcr 1985 (the Exchange of Notes)." 2.4 The preamble to the Treaty records that the intention of tlu:: Contracting Parties was to enhance their mutual economic prosperity through the promotion and protection of investments by the nationals of each state in the teni.tory of the other. The preamble provides: "The Government of the United Kingdom 0/ Great Britain and Northern Ireland and the Government o/Belize: Desiring to create favourable conditions for greater investment by nationals and companies ofone State in the temiory ofthe other State; Recognising that the ertCOumgement and reciprocal protection under international agreement of such investments will be conducive to the stimulation of individual business initiative and will increase prosperity in both States;" 2.5 The Treaty's object and purpose is the promotion and protection of investment flows between Belize and the United Kingdom and with other territories to which protection was extended under Article 11, such as the Turka and Caicos Islands. As dcsc::ribed briefly below, the Government bas acted in disregard of the intentions expressed in the Treaty and in violation of the international legal obligatioll:l to which it agMCd to be bound. 3. THE AGREEMENT TO ARBITRATE 3.1 Article 8 of the Treaty provides: "( 1) Disputes between a national or company of one COlltracting Party and the other Contmcting Party concerning an obligation ofthe latter under this Agreement ill relation to an Investment of the formu which have not been amicably settled. shall after a period of three months from written notijlcallon 0/ a claim be submitted to international arbitration if either party 10 the dispute so wishu." "(2) Where the dispute is referred to international arbitration. the iffVl!!ltor and the Contracting Party concerned in tire dispute may agree to nrfer the dtrpute either to-- (a) the International Centre for tAe Seuleme1u of Investment Disputes (having regard to the 3 provisions, where appIiroble, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington D.C. on 18 March 1965 and the Additional Facility for the Administration ofConciliation, Arbitration and Facl-Finding Proceedings),' or (b) the Court ofArbitration ofthe International Chamber ofCommerce; or (c) an International arbitrator or ad hoc arbitration tribunal to be appointed by a special agreement or established under the Arbitration Rules ofthe United Nations Commission on International Trade Law. ifafter a period ofthree montlu from written notification of the claim there is no agreement to an alternative procedure, the parties to the dispute shall be bound to submit it to arbitration under lhe Arbitration Rules ofthe United Nations Commission on International Trade Law as then in force. The parties to the dispute may agree in writing to modify these Rules." 3.2 By letter dated 27 August 2009. Allen &; Overy LLP, on behalf ofDunkeld wrote to the Oovcmmen:t and notified a claim to be submitted to international arbitration in aceordance with Article 8(1) of tile Treaty. A period of three months has passed sincc: Dunkeld notified the Government of its claim and the dispute has not been amicably settled. Dunkeld now refcrl the dispute to international arbitration. 3.3 By the terms of Article 8(1), the Government expresses in writing in advance its generic and unequivocal consent to submit disputcs to international arbitration. By serving this Notice. Dunkeld accepts the Government's offer to submit this dispute to international arbitration in accordance with Article 8 olthe Treaty. 3.4 By the above mentioned lcUcr dated 27 August 20096 and a further letter dated 24 September 2009 , ' Allen &. Overy LLP, on behalf of Dunkeld, uked the Government to indicate which of the above means of international arbitration it would propose for the dispute.
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